STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

FILED State of West Virginia,
 

Plaintiff Below, Respondent January 11, 2016
 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 15-0152 (Mercer County 14-F-140-WS) OF WEST VIRGINIA 

Daniel C.,
 

Defendant Below, Petitioner
 

MEMORANDUM DECISION 

Petitioner Daniel C.,1 by counsel R. Thomas Czarnik, appeals the Circuit Court of Mercer 

County’s March 31, 2015, order resentencing him upon his conviction of seven counts of firstdegree sexual abuse and five counts of sexual abuse by a parent. The State, by counsel Laura 

Young, filed a response in support of the circuit court’s order. Petitioner filed a supplemental 

appendix. On appeal, petitioner argues that the circuit court: 1) erred in making evidentiary 

rulings; 2) failed to dismiss count nine of the indictment; and 3) erred in permitting the State to 

ask the victims leading questions. Petitioner also argues that his sentence was excessive. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these 

reasons, a memorandum decision affirming the order of the circuit court is appropriate under 

Rule 21 of the Rules of Appellate Procedure. 

In 2012, the West Virginia State Police initiated an investigation upon receiving 

allegations that petitioner inappropriately touched four children. As part of the initial 

investigation, petitioner gave a statement to Trooper Lamont Lee. Thereafter, on January 3, 

2013, petitioner voluntarily met with Sergeant Melissa Clemons of the West Virginia State 

Police for the purpose of taking a polygraph examination. During the “pre-interview” procedure, 

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“We follow our past practice in . . . cases which involve sensitive facts and do not utilize 

the last names of the parties.” State ex rel. W.Va. Dep’t of Human Servs. v. Cheryl M., 177 

W.Va. 688, 689 n. 1, 356 S.E.2d 181, 182 n. 1 (1987) (citations omitted). See also State v. 

Edward Charles L., 183 W.Va. 641, 645 n. 1, 398 S.E.2d 123, 127 n. 1 (1990) (“Consistent with 

our practice in cases involving sensitive matters, we use the victim's initials. Since, in this case, 

the victim . . . [is] related to the [petitioner], we have referred to the [petitioner] by his last name 

initial.”(citations omitted)). 

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petitioner decided to give a statement to Sergeant Clemons. Thereafter, in the course of giving 

his statement, petitioner admitted to inappropriately touching the children. 

In June of 2014, the Mercer County grand jury indicted petitioner on six counts of firstdegree sexual abuse, one count of first-degree sexual assault, and five counts of sexual abuse by 

a parent, guardian, custodian or person in position of trust to a child. The indictment charged that 

the sexual crimes occurred at various times beginning in 2006 through 2012, all with victims less 

than twelve years old. 

Prior to trial, petitioner filed a motion to suppress his January 3, 2013, oral statement to 

Sergeant Clemons on the ground that Sergeant Clemons failed to produce a videotaped copy of 

the interview. On October 21, 2014, the circuit court held a hearing on petitioner’s motion during 

which it heard testimony from Sergeant Clemons, Sergeant Robert Richards, and petitioner. 

After considering all of the testimony, the circuit court denied petitioner’s motion to suppress his 

oral statement given to Sergeant Clemons finding that the video recording “[was] not crucial or 

exculpatory evidence for either the State of the [petitioner.]” Furthermore, the circuit court found 

that petitioner gave his statement freely and voluntarily. Petitioner’s jury trial commenced in 

November of 2014. Following a three-day trial, a jury convicted petitioner on all counts, 

including the lesser included offense of first-degree sexual abuse for count nine of the 

indictment.2 

Thereafter, petitioner filed a motion for new trial arguing that the circuit court erred in: 

1) refusing to admit exhibits and the transcript of an interview conducted by Trooper Lee on the 

ground of hearsay; 2) refusing to admit an interview of an alleged victim R.F. on the grounds 

that it was cumulative; 3) denying his motion to dismiss Count nine; 4) admitting his statement 

made to Sergeant Clemons; and 5) allowing the State to ask the victims leading questions. By 

order entered on November 30, 2014, the circuit court sentenced petitioner to a cumulative 

sentence of 31 to 100 years of incarceration. The circuit court also denied petitioner’s motion for 

new trial. This appeal follows. 

On appeal, petitioner raises seven assignments of error. In his first and second 

assignments of error, petitioner argues that the circuit court made certain erroneous evidentiary 

rulings. This Court has explained that it affords great deference to evidentiary rulings made by a 

circuit court. 

“The action of a trial court in admitting or excluding evidence in the 

exercise of its discretion will not be disturbed by the appellate court unless it 

appears that such action amounts to an abuse of discretion.” Syllabus point 10, 

State v. Huffman, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other 

grounds, State ex rel. R.L. v. Bedell, 192 W.Va. 435, 452 S.E.2d 893 (1994). 

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Count nine of the indictment charged petitioner with first-degree sexual assault. 

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Syl. Pt. 1, State v. Calloway, 207 W.Va. 43, 528 S.E.2d 490 (1999). Stated another way: 

“The West Virginia Rules of Evidence . . . allocate significant discretion 

to the trial court in making evidentiary . . . rulings. Thus, rulings on the 

admissibility of evidence . . . are committed to the discretion of the trial court. 

Absent a few exceptions, this Court will review evidentiary . . . rulings of the 

circuit court under an abuse of discretion standard.” Syllabus Point 1, in part, 

McDougal v. McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995). 

Syl. Pt. 9, Smith v. First Community Bancshares, Inc., 212 W.Va. 809, 575 S.E.2d 419 (2002). 

Petitioner’s argument with respect to his first assignment of error is that the circuit court 

erred in excluding a copy of the transcript of the statement that he gave to Trooper Lee. 

Petitioner disputes the circuit court’s finding that a copy of the transcript was hearsay. During the 

direct examination of Tpr. Lee, the State played for the jury the entire audio recording of 

petitioner’s statement taken by Tpr. Lee during the underlying investigation which primarily 

focused upon petitioner’s drinking habits. After the audio recording was admitted, petitioner’s 

counsel sought to introduce as evidence a copy of the transcript, to which the State objected. 

With respect to the admission of the transcript of petitioner’s statement, we agree with the circuit 

court’s finding that the written transcript should be excluded because it was not the best evidence 

of petitioner’s statement. “To be admissible as substantive evidence, a transcript of a tape 

recording must satisfy both the best evidence rule and the hearsay rule.” State v. Hardesty, 194 

W.Va. 732, 739, 461 S.E.2d 478, 485 (1995). Further, Rule 1002 of the West Virginia Rules of 

Evidence provides that “[a]n original . . . recording . . . is required in order to prove its 

content[.]” Here, the transcript of petitioner’s statement to Tpr. Lee does not satisfy the best 

evidence rule as the original audio recording of petitioner’s statement was the best evidence to 

prove its content. 

In his second assignment of error, petitioner argues that the statement of R.F. (an alleged 

victim), wherein R.F. denied that petitioner abused her should have been admitted into evidence 

because it was exculpatory and necessary for impeachment purposes. Again, we agree with the 

finding made by the circuit court in excluding R.F’s statement as cumulative. Rule 403 of the 

West Virginia Rules of Evidence provides that the court may exclude relevant evidence if it is 

cumulative. Upon review of the record, we find that petitioner’s counsel conceded that the 

evidence he sought to introduce through R.F.’s statement had already been introduced through 

direct and cross-examination of other witnesses. Accordingly, we do not believe that the circuit 

court erred in excluding the transcript of petitioner’s statement to Trooper Lee or R.F.’s 

statement. 

We turn to petitioner’s third assignment of error, in which he argues that the evidence 

presented by the State was insufficient to prove his guilt of first-degree sexual assault (count nine 

of the indictment) beyond a reasonable doubt. With regard to claims of sufficiency of the 

evidence in a criminal proceeding, we have explained that 

“[a] criminal defendant challenging the sufficiency of the evidence to 

support a conviction takes on a heavy burden. An appellate court must review all 

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the evidence, whether direct or circumstantial, in the light most favorable to the 

prosecution and must credit all inferences and credibility assessments that the jury 

might have drawn in favor of the prosecution. The evidence need not be 

inconsistent with every conclusion save that of guilt so long as the jury can find 

guilt beyond a reasonable doubt. Credibility determinations are for a jury and not 

an appellate court. Finally, a jury verdict should be set aside only when the record 

contains no evidence, regardless of how it is weighed, from which the jury could 

find guilt beyond a reasonable doubt. To the extent that our prior cases are 

inconsistent, they are expressly overruled.” Syllabus Point 3, State v. Guthrie, 194 

W.Va. 657, 461 S.E.2d 163 (1995). 

Syl. Pt. 1, State v. Malfregeot, 224 W.Va. 264, 685 S.E.2d 237 (2009). To convict petitioner of 

first-degree sexual assault, the State had to prove that petitioner engaged in “sexual intercourse” 

or “sexual intrusion” with another person. W. Va. Code § 61-8B-3(a)(1). “‘Sexual intrusion’ 

means any act between persons involving penetration, however slight, of the female sex organ . . 

. by an object for the purpose of . . . gratifying the sexual desire of either party.” W. Va. Code § 

61-8B-1(8). 

Following a thorough review of the record on appeal and the parties’ arguments, we find 

no merit to petitioner’s argument. The alleged victim testified that petitioner touched her “inside 

her private area” and that “[i]t hurt a little.” Given this testimony, the jury heard sufficient 

evidence to find that petitioner’s conduct amounted to sexual intrusion. Therefore, we reject 

petitioner’s third assignment of error. 

Next, petitioner argues that his statement to Sergeant Clemons should not have been 

admitted at trial because it was obtained in violation of his right to counsel. Petitioner asserts that 

he made his statement to Sergeant Clemons while he was represented by counsel in an abuse and 

neglect proceeding involving the same facts. Petitioner also notes that he did not waive his right 

to counsel. “The Sixth Amendment right to counsel attaches at the time judicial proceedings 

have been initiated against a defendant whether by way of formal charges, preliminary hearing, 

indictment, information, or arraignment.” Syl. Pt. 1, State v. Bowyer, 181 W. Va. 26, 380 S.E.2d 

193 (1989). This Court has also held that 

the police may subsequently initiate a custodial interrogation of the accused 

regarding a wholly unrelated offense for which he or she has not been charged, 

provided that, prior to the interrogation, the accused is apprised of his . . . rights 

pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 

(1966)[.]” 

Syl. Pt. 2, in part, State v. Blackburn, 233 W.Va. 362, 758 S.E.2d 566 (2014). In this case, 

petitioner’s Sixth Amendment right to counsel was not violated. At the time petitioner gave his 

statement to Sergeant Clemons, he was informed that he was not under arrest, he had signed a 

“Miranda Rights Form” acknowledging his rights, and the State had yet to initiate any criminal 

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proceedings against him.3 Accordingly, we find no error in the circuit court’s order denying 

petitioner’s motion to suppress the inculpatory statement to Sergeant Clemons. 

In his sixth assignment of error, petitioner argues that the circuit court erred in allowing 

the State to ask the alleged victims leading questions. Specifically, petitioner asserts that the 

victims were older than seven years old and “not of tender years.” See Syl. Pt. 2, Hendricks v. 

Monongahela West Penn Pub. Serv. Co., 111 W.Va. 576, 163 S.E. 411 (1932) (“[i]n the absence 

of special circumstances justifying it, the party introducing a witness should not be permitted to 

elicit the information he desires by leading questions.”) 

Rule 611(c) of the West Virginia Rules of Evidence provides that, although leading 

questions “should not be used on direct examination of a witness, an exception may be necessary 

to develop the witness’ testimony.” Further, “[t]he allowance of leading questions rests largely in 

the discretion of the trial court, and absent an abuse of such discretion, the trial court’s ruling 

will not be disturbed.” Syl. Pt. 6, State v. Fairchild, 171 W.Va. 137, 298 S.E.2d 110 (1982). 

Here, the record reveals that nine-year-old A.C. was hesitant to testify and often would give oneword answers. Further, petitioner’s counsel admitted that A.C. was a child of tender years. Given 

these problems, we find that the circuit court did not abuse its discretion in allowing the State to 

ask this child-witness leading questions on direct examination as a means of developing her 

testimony. 

Finally, petitioner argues that his sentence is constitutionally excessive. While petitioner 

argues that his crimes do not warrant a sentence equal to capital crimes, we find that his sentence 

is not appropriate for appellate review. “The Supreme Court of Appeals reviews sentencing 

orders, . . . under a deferential abuse of discretion standard, unless the order violates statutory or 

constitutional commands.” Syl. Pt. 1, in part, State v. Lucas, 201 W.Va. 271, 496 S.E.2d 221 

(1997). Accord, Syl. Pt. 1, State v. James, 227 W.Va. 407, 710 S.E.2d 98 (2011). ““Sentences 

imposed by the trial court, if within statutory limits and if not based on some [im]permissible 

factor, are not subject to appellate review.” Syllabus Point 4, State v. Goodnight, 169 W.Va. 366, 

287 S.E.2d 504 (1982).” Syl. Pt. 3, State v. Georgius, 225 W.Va. 716, 696 S.E.2d 18 (2010). 

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Related to this assignment of error, petitioner makes a fleeting reference to this Court’s 

holding in State v. Osakalumi, 194 W.Va. 758, 461 S.E.2d 504 (1995). In his brief to this Court, 

petitioner contends that “‘bad faith’ is not a requirement for prejudicial disposal of evidence,” 

suggesting that the State withheld a copy of a videotaped recording of his statement The record 

on appeal is devoid of any evidence that a video recording existed. Inasmuch as the circuit court 

presumed that the video recording existed in denying petitioner’s motion to suppress this 

evidence, we will not look behind the circuit court’s decision. In this memorandum decision, we 

address only those grounds sufficiently briefed by petitioner. Petitioner’s conclusory reference to 

“prejudicial disposal,” is deficient as it is unsupported by citations to the appendix record on 

appeal or by meaningful argument. As this Court has explained, “[a] skeletal ‘argument,’ really 

nothing more than an assertion, does not preserve a claim . . . .” State v. Kaufman, 227 W.Va. 

537, 555 n. 39, 711 S.E.2d 607, 625 n. 39 (2011) (quoting United States v. Dunkel, 927 F.2d 955, 

956 (7th Cir.1991)). See also Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure 

(“[t]he brief must contain an argument . . . .”) 

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We first note that the sentences imposed by the circuit court for first-degree sexual abuse 

were consistent with the statute. West Virginia Code § 61-8B-7, provides for a sentence of 

imprisonment for “not less than five nor more than twenty-five years.” Similarly, the sentences 

imposed for sexual abuse by a parent were consistent with the statute. West Virginia Code § 61­

8D-5, provides for a sentence of imprisonment for “not less than ten nor more than twenty 

years.” Additionally, “[w]hen a defendant has been convicted of two separate crimes, before 

sentenced is pronounced for either, the trial court may, in its discretion, provide that the 

sentences run concurrently, and unless it does not provide, the sentences will run consecutively.” 

Syl. Pt. 3, Keith v. Leverette, 163 W.Va. 98, 254 S.E.2d 700 (1979). Petitioner’s sentences do not 

exceed the applicable statutory limits and are not based on any impermissible factor. 

For the foregoing reasons, the circuit court’s March 31, 2015, order, is hereby affirmed. 

Affirmed. 

ISSUED: January 11, 2016 

CONCURRED IN BY: 

Chief Justice Menis E. Ketchum 

Justice Robin Jean Davis 

Justice Brent D. Benjamin 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

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